LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 6
Don Lye
Some philosophical and public policy considerations.
No injunction was granted – was not personal property. If it was granted, the plaintiff
would have received protection for a very novel interest.
1.2 T
2 main lessons.
The severance of title and possession.
Possession of tangible personal property can be substantive – in that it is significant
and important.
An example from real property – lease – grant of exclusive possession. Registered
proprietor retains ownership but has given up possession. Lessee gains right to exclusive
possession – excluding even the lessor.
An example from personal property – car repair at the garage – can the garage withhold
the car until payment has been completed? Assuming no contractual rights etc, just
common law.
Yes – a common law lien – a right to keep possession of property belonging to
another person until a debt owed by that person is discharged.
Wilson v Lombank Ltd
[1963] 1 All ER 740 (Assizes)
Plaintiff takes a car to garage for repair – the work is done and the vehicle is left in forecourts of
garage with the intention that the plaintiff will collect car.
3rd party (defendant) takes the car without the authority of the plaintiff – did not have the
authority of the plaintiff to do so, had interfered with plaintiff's possession.
Plaintiff brings an action in trespass.
However, neither the defendant nor the plaintiff owned the car.
Plaintiff had a basis for asserting its interest over the car – based on possession.
The mere fact that the plaintiff had possession gave him the right to successfully sue for
interference with possession.
Irrespective of who had title – neither party had title.
Significant rights attach to possession.
Defendant argued that at that point, the plaintiff had not paid the garage - garage was
entitled to retain possession as it has a lien over the car. Therefore no immediate right to
recover because plaintiff had no right to possession.
Unluckily for the defendant, the plaintiff and garage had an arrangement where the
garage gave credit terms to plaintiff and the plaintiff could pay at end of month.
“in my judgment the plaintiff was in possession of the car; not only did he have the right to
immediate possession, but I do not think that, in the circumstances of this case, the
plaintiff ever lost possession of the car. In my view, the plaintiff at all times could have
demanded the return of the car”.
“I do not think that there was a lien on the motor car, having regard to the course of
dealing between the plaintiff and the Haven Garage over a period of eight years, during
which time there existed this monthly credit. On the view which I have formed, that the
plaintiff never lost possession of the motor car, it seems to me that the defendants
wrongfully took the car and that the plaintiff E is entitled to recover damages.”
Constructive possession – a form of possession.

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